DRISCO v. CITY OF ELIZABETH et al
Filing
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OPINION. Signed by Judge Esther Salas on 12/6/2013. (nz, )N.M.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWIN DRISCO,
Plaintiff,
v.
CITY OF ELIZABETH, et al.,
Defendants.
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Civil Action No. 12-2111 (ES)
OPINION
APPEARANCES:
Edwin Drisco
Talbot Hall-Harmony Unit
100-150 Lincoln Highway
Kearny, NJ 07032
Plaintiff pro se
SALAS, DISTRICT JUDGE
Plaintiff Edwin Drisco, a prisoner confined at Talbot Hall in Kearny, New Jersey, seeks
to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional rights. 1
At this time, the Court must review the Complaint to determine whether it should be
1
This matter previously was administratively terminated based on Plaintiff’s failure to submit a
complete application for leave to proceed in forma pauperis. (D.E. Nos. 3, 4.) Plaintiff has now
submitted a complete application. Based on his affidavit of indigence and the absence of three
qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff’s application to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and will order the Clerk of the Court
to re-open this action and to file the Complaint.
dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted,
or because it seeks monetary relief from a defendant who is immune from such relief.
I. BACKGROUND
The following factual allegations are taken from Plaintiff’s Complaint 2 and are accepted
as true for purposes of this review.
Plaintiff alleges that, at some time in the past, he was acquitted of charges submitted by
Defendant Detective Thomas Koczur of the Elizabeth Police Department. (Compl., ¶ 21).
Plaintiff alleges that he later was arrested on March 25, 2009, and charged with a robbery at 162
Fifth Street, in Elizabeth, New Jersey, on February 17, 2009. (Compl., ¶¶ 5, 16). According to
Plaintiff, because of the earlier acquittal, Detective Koczur went before the Union County
Superior Court on May 29, 2010, seeking an indictment against Plaintiff on the 2009 robbery.
(Compl., ¶ 14). Plaintiff also alleges that, because of the earlier acquittal, Detective Koczur
knowingly gave false testimony to the grand jury that a Mr. Raymond Howard had positively
identified Plaintiff as a participant in the 2009 robbery. (Compl., ¶¶ 15-21).
Plaintiff asserts that no victim of the 2009 robbery ever identified him from a photo array,
nor did the video surveillance display Plaintiff as the robber. (Compl., ¶¶ 16, 17, 19). Plaintiff
alleges that the robbery victim described the robber as a light-skinned Hispanic male, whereas he
is a “darker complexion African American male.” (Compl., ¶ 18). He further alleges that the
charges against him were dismissed, on September 19, 2011, for lack of evidence. (Compl.,
¶ 22).
2
The Complaint and cover letter are dated March 21, 2012. Pursuant to the federal “mailbox
rule,” see Houston v. Lack, 487 U.S. 266 (1988) and Burns v. Morton, 134 F.3d 109 (3d Cir.
1998), this Court deems the Complaint “filed” as of that date. See Woodson v. Payton, 503
F.App’x 110, 112 n.3 (3d Cir. 2012).
2
Plaintiff names as defendants Detective Koczur, the City of Elizabeth, Mayor J. Christian
Bollwage, the Elizabeth Police Department, and the fictitious defendants John Does 1-5 3 and
ABC ENTITIES 1-5. Plaintiff asserts federal claims for false arrest and imprisonment in
violation of the Fourth and Fourteenth Amendments, for malicious prosecution in violation of the
Fourth Amendment, for failure to supervise, for violation of 42 U.S.C. § 1985, and pendent statelaw claims for abuse of process and intentional infliction of severe emotional distress. (Compl.,
¶¶ 23-24, 34). He seeks compensatory and punitive damages.
II. STANDARDS FOR A SUA SPONTE DISMISSAL
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915 and
1915A because Plaintiff is proceeding in forma pauperis and because he seeks redress against
government employees and entities.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
3
The fictitious defendants “John Does 1-5” are not listed in the caption of the Complaint, but are
identified in the text.
3
(2007)). To survive sua sponte screening for failure to state a claim 4, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible.
Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “‘A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Belmont v. MB Inv. Partners, Inc., 708
F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).
Finally, where a complaint can be remedied by an amendment, a district court may not
dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez,
504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police
Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III. SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory ... subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the
4
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232
(3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x
159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
4
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . .
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of
a right secured by the Constitution or laws of the United States and, second, that the alleged
deprivation was committed or caused by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV. ANALYSIS
A.
Claims Against Fictitious Defendants
The fictitious defendants ABC Entities 1-5 are described only as “yet unknown and those
unidentified municipal, county or state officials, supervisors, agents or employees or entities,
individually and in their official capacity.” (Compl.). The fictitious defendants John Does 1-5
are described only as persons “who acting under color of state law and under authority, custom
and usage, violated the civil rights of plaintiff.” (Compl., ¶ 23).
No factual allegations are made with respect to any of the fictitious defendants. While
fictitious defendants “‘are routinely used as stand-ins for real parties until discovery permits the
intended defendants to be installed,’” Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998)
(citations omitted), Plaintiff’s failure here to allege any identifying characteristics or any facts
suggesting a basis for liability requires dismissal of all claims against the unnamed fictitious
defendants for failure to state a claim. It is not sufficient merely to add “John Does” to the list of
defendants; Plaintiff must, in the body of the Complaint, make factual allegations describing the
John Does defendants and their actions. See Kates v. Bridgeton Police Department, No. 106386, 2011 WL 6720497, *1 n.1 (D.N.J. Dec. 21, 2011); Beale v. Department of Justice, No. 062186, 2007 WL 327465, *8 (D.N.J. Jan. 30, 2007); Smith v. Creative Resources, Inc., No. 97-
5
6749, 1998 WL 808605, *1 n.2 (E.D. Pa. Nov. 23, 1998).
B.
Failure to Train or Supervise
Plaintiff asserts in conclusory language that various defendants are liable to him for
failure to properly train and supervise employees.
It is well-settled that “the inadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989);
Beck v. City of Pittsburgh, 89 F.3d 966, 971-72 (3d Cir. 1996). Where a need for “more or
different training . . . is so obvious, and the inadequacy so likely to result in constitutional
violations, that the failure to train . . . can fairly be said to represent official policy,” City of
Canton, 489 U.S. at 390, and that failure to train “actually causes injury,” a supervisor or
municipality may be held liable. Id. Similarly, a supervisor or municipality may be liable for
failure to supervise “only if it reflects a policy of deliberate indifference to constitutional rights.”
Jewell v. Ridley Twp., No. 11-4231, 2012 WL 4096259, *3 (3d Cir. Sept. 19, 2012) (citing
Montgomery v. DeSimone, 159 F.3d 120, 126-27 (3d Cir. 1998)).
In addition, in resolving the issue of supervisory liability,
the focus must be on adequacy of the training program in relation to the tasks the
particular officers must perform. That a particular officer may be unsatisfactorily
trained will not alone suffice to fasten liability on the [supervisor], for the
officer’s shortcomings may have resulted from factors other than a faulty training
program . . . [n]either will it suffice to prove that an injury or accident could have
been avoided if an officer had had better or more training . . . [m]oreover, for
liability to attach . . . the identified deficiency in a city’s training program must be
closely related to the ultimate injury.
City of Canton, 489 U.S. at 390-91. Cf. Ashcroft v. Iqbal, 556 U.S. at 682-83 (remote
supervisory government officials can be held liable for discriminatory acts of subordinates only
if “they themselves acted on account of a constitutionally protected characteristic”).
6
Here, Plaintiff has alleged nothing more than that an individual police officer was
motivated by malice to wrongfully accuse Plaintiff of a crime by presenting false evidence
against him. These actions by an individual police officer are plainly an insufficient basis for a
claim against his supervisors of constitutional violations as a result of failure to train or
supervise. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1060 (3d Cir. 1991) (a plaintiff
cannot establish a failure to train claim by presenting evidence of the shortcomings of an
individual). This claim will be dismissed without prejudice.
C.
Vicarious Liability
The only “facts” that Plaintiff has alleged derive from the activities of Defendant
Detective Koczur. Thus, except with respect to the claim for failure to train, addressed in
Paragraph B, above, it appears that Plaintiff seeks to utilize a theory of vicarious liability to
assert claims against the City of Elizabeth, Mayor J. Christian Bollwage, the Elizabeth Police
Department, and the fictitious defendants ABC Entities 1-5 and John Does 1-5.
Local government units and supervisors are not liable under § 1983 solely on a theory of
respondeat superior. See Connick v. Thompson, 131 S.Ct. 1350, 1358-61 (2011); City of
Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York City Department of
Social Services, 436 U.S. 658, 690-91, 694 (1978) (municipal liability attaches only “when
execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury”
complained of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d Cir.
2003). “A defendant in a civil rights action must have personal involvement in the alleged
wrongs, liability cannot be predicated solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
7
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted).
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
To establish municipal liability under § 1983, “a plaintiff must show that an official who
has the power to make policy is responsible for either the affirmative proclamation of a policy or
acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990),
quoted in Blanche Rd. Corp. v. Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516
U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 126 (3d
Cir. 2000). A plaintiff must demonstrate that, through its deliberate conduct, the municipality
was the moving force behind the plaintiff’s injury. Monell, 436 U.S. at 689.
Here, Plaintiff has failed to allege any facts that would suggest that any of the municipal,
supervisory, or fictitious defendants had any personal involvement in his arrest and indictment or
were responsible for any policy or custom that would render them liable for any of the alleged
claims. Accordingly, all claims against them will be dismissed without prejudice for failure to
state a claim.
D.
False Arrest and Imprisonment
Plaintiff alleges that he was subject to a false arrest on March 25, 2009. Plaintiff fails to
allege sufficient facts to state a claim. In addition, the claim appears to be time-barred.
It is well established in the Third Circuit that an arrest without probable cause is a Fourth
Amendment violation actionable under ' 1983. See Berg v. County of Allegheny, 219 F.3d 261,
268-69 (3d Cir. 2000) (collecting cases); see also Albright v. Oliver, 510 U.S. 266, 274 (1994) (a
section 1983 claim for false arrest may be based upon an individual=s Fourth Amendment right to
be free from unreasonable seizures). To state a Fourth Amendment claim for false arrest, a
8
plaintiff must allege two elements: “(1) that there was an arrest; and (2) that the arrest was made
without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)
(citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) and Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). Probable cause exists “whenever reasonably
trustworthy information or circumstances within a police officer’s knowledge are sufficient to
warrant a person of reasonable caution to conclude that an offense has been committed by the
person being arrested. United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v.
State of Ohio, 379 U.S. 89, 91 (1964)).
Moreover Awhere the police lack probable cause to make an arrest, the arrestee has a
claim under ' 1983 for false imprisonment based on a detention pursuant to that arrest.@ Groman
v. Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Wallace v. Fegan, 455 F.App’x 137, 139 (3d
Cir. 2011) (quoting Groman). See also Wallace v. Kato, 549 U.S. 384, 388 (2007) (“False arrest
and false imprisonment overlap; the former is a species of the latter.”).
Here, Plaintiff has not alleged any facts regarding the circumstances that led to his arrest.
Plaintiff does not state who arrested him on March 25, 2009, what information was known to that
person, whether Plaintiff was arrested pursuant to a warrant, what information was provided to
procure an arrest warrant, or who provided that information. For example, Plaintiff does not
state when Detective Koczur testified before the Grand Jury or whether that testimony led to
Plaintiff’s arrest (as opposed to Plaintiff’s indictment). In addition, Plaintiff alleges that
Detective Koczur went to court seeking an indictment against Plaintiff on May 29, 2010, long
after Plaintiff’s arrest; so that activity does not relate to Plaintiff’s arrest. Nor does the fact that
the charges were later dropped have any relevance to whether, at the time of arrest,
circumstances were such as to warrant a prudent man in believing that Plaintiff had committed
9
the robbery. Thus, Plaintiff has failed to allege facts sufficient to state a plausible claim for false
arrest and false imprisonment, under either federal or state law.
In any event, the claim appears to be time-barred. Although the statute of limitations is
an affirmative defense which may be waived by the defendant, it is appropriate to dismiss sua
sponte, under 28 U.S.C. § 1915(e)(2), a pro se civil rights claim whose untimeliness is apparent
from the face of the Complaint. See, e.g., Jones v. Bock, 549 U.S. 199, 214-15 (2007) (if the
allegations of a complaint, “for example, show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim”). 5 The requirements
of 28 U.S.C. § 1915A (governing civil actions in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity) that federal courts review
and dismiss any complaint that fails to state a claim parallel the provision in 28 U.S.C. § 1915(e).
Before explaining why Plaintiff’s claim is time-barred here, the Court will first provide a
brief overview of the governing law. Civil rights claims are best characterized as personal injury
actions and are governed by the applicable state’s general or residual statute of limitations for
such actions. See Owens v. Okure, 488 U.S. 235 (1989) (cited in Wallace v. Kato, 549 U.S. 384,
387 (2007); Wilson v. Garcia, 471 U.S. 261, 280 (1985) (same). Accordingly, New Jersey’s
two-year limitations period on personal injury actions, N.J. Stat. Ann. § 2A:14-2, governs
Plaintiff’s claims. See Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010)
(citing Montgomery v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998) and Cito v.
5
See also Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding, under former § 1915(d) in forma
pauperis provisions, that sua sponte dismissal prior to service of an untimely claim is appropriate
since such a claim “is based on an indisputably meritless legal theory”); Hunterson v. DiSabato,
244 F.App’x 455, 457 (3d Cir. 2007) (“district court may sua sponte dismiss a claim as time
barred under 28 U.S.C. § 1915A(b)(1) where it is apparent from the complaint that the applicable
limitations period has run”) (citing Jones v. Bock, Pino v. Ryan) (not precedential); Johnstone v.
United States, 980 F.Supp. 148 (E.D. Pa. 1997) (applying Pino to current § 1915(e)).
10
Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989)). Under N.J. Stat. Ann. §
2A:14-2, an action for an injury to the person caused by a wrongful act, neglect, or default must
be commenced within two years of accrual of the cause of action. Cito, 892 F.2d at 25; accord
Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in
original). A claim accrues as soon as the injured party “knew or had reason to know of the injury
that constitutes the basis of his action.” Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982).
See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir. 1994).
“Plaintiff’s actual knowledge is irrelevant. Rather, the question is whether the knowledge was
known, or through reasonable diligence, knowable. Moreover, the claim accrues upon
knowledge of the actual injury, not that the injury constitutes a legal wrong.” Fassnacht v.
United States, 1996 WL 41621 (E.D. Pa. Feb. 2, 1996) (citing Oshiver, 38 F.3d at 1386). A
' 1983 claim for false arrest typically accrues on the date of the plaintiff=s arrest. See
Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); Rose v. Bartle, 871 F.2d 331, 34851 (3d Cir. 1989). In this instance, there is nothing to suggest a later accrual date under state
law.
Unless their full application would defeat the goals of the federal statute at issue, courts
should not unravel states’ interrelated limitations provisions regarding tolling, revival, and
questions of application. Wilson v. Garcia, 471 U.S. at 269. New Jersey statutes set forth
certain bases for “statutory tolling.” See, e.g., N.J.S.A. § 2A:14-21 (detailing tolling because of
minority or insanity); N.J.S.A. § 2A 14-22 (detailing tolling because of nonresidency of persons
liable). New Jersey law permits “equitable tolling” where “the complainant has been induced or
11
tricked by his adversary’s misconduct into allowing the filing deadline to pass,” or where a
plaintiff has “in some extraordinary way” been prevented from asserting his rights, or where a
plaintiff has timely asserted his rights mistakenly by either defective pleading or in the wrong
forum. See Freeman v. State, 347 N.J. Super. 11, 31 (citations omitted), cert. denied, 172 N.J.
178 (2002). “However, absent a showing of intentional inducement or trickery by a defendant,
the doctrine of equitable tolling should be applied sparingly and only in the rare situation where
it is demanded by sound legal principles as well as the interests of justice.” Id.
When state tolling rules contradict federal law or policy, in certain limited circumstances,
federal courts can turn to federal tolling doctrine. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir.
2000). Under federal law, equitable tolling is appropriate in three general scenarios:
(1) where a defendant actively misleads a plaintiff with respect to her cause of
action; (2) where the plaintiff has been prevented from asserting her claim as a
result of other extraordinary circumstances; or (3) where the plaintiff asserts her
claims in a timely manner but has done so in the wrong forum.
Id. n.9.
Based on these statute of limitations principles, Plaintiff’s claim is time-barred. Here,
according to the allegations of his Complaint, any claim for false arrest accrued at the time of
Plaintiff’s arrest, on March 25, 2009, almost three years before the date of the Complaint—
March 21, 2012. This period of time far exceeds the two-year limitations period. Moreover,
Plaintiff has failed to allege any facts suggesting a basis for tolling under N.J.S.A. § 2A:14-21,
2A:14-2, or any other equitable ground. Accordingly, the federal and state claims for false arrest
and false imprisonment will be dismissed with prejudice as untimely.
E.
Malicious Prosecution
In order to state a § 1983 claim of malicious prosecution in violation of the Fourth
Amendment, a plaintiff must establish the elements of the common law tort as it has developed
12
over time, and that there has been some deprivation of liberty consistent with a seizure. See
Johnson v. Knorr, 477 F.3d 75, 81-85 (3d Cir. 2007); Gallo v. City of Philadelphia, 161 F.3d
217, 221-22 (3d Cir. 1998). 6 Under New Jersey law, the common law tort elements of a
malicious prosecution action arising out of a criminal prosecution are: (1) the criminal action
was instituted by the defendant against the plaintiff, (2) it was actuated by malice, (3) there was
an absence of probable cause for the proceeding, and (4) the criminal proceeding was terminated
favorably to the plaintiff. Lind v. Schmid, 67 N.J. 255, 262 (1975). See also Johnson v. Knorr,
477 F.3d at 81-82.
Here, the allegations that Detective Koczur gave false testimony to the grand jury
because he was disgruntled by an earlier acquittal of Plaintiff on other charges, are sufficient to
permit the federal and state malicious prosecution claims to proceed beyond the screening stage
as to him, only. 7 There are no factual allegations that would suggest that any other Defendant
maliciously acted to initiate criminal charges against Plaintiff without probable cause.
F.
42 U.S.C. § 1985
Plaintiff asserts in conclusory fashion that the defendants have violated his rights under
42 U.S.C. § 1985. (Compl., ¶ 20).
Title 42 U.S.C. Section 1985 consists of three subsections dealing with various
6
In Gallo, the Court noted that prosecution without probable cause probably is not, in and of
itself, a constitutional tort based on a violation of substantive due process. “Instead, the
constitutional violation is the deprivation of liberty accompanying the prosecution,” which raises
a claim of violation of the Fourth Amendment right not to be subjected to unreasonable seizures.
It is for this reason that a claim for malicious prosecution must include an allegation that there
was a seizure within the meaning of the Fourth Amendment. 161 F.3d at 222 (citing Albright v.
Oliver, 510 U.S. 266 (1994)).
7
The Court notes that the claim for malicious prosecution did not accrue, and the limitations
period did not begin to run, until the criminal proceeding was resolved in Plaintiff’s favor on
September 19, 2011. Heck v. Humphrey, 512 U.S. 477, 489 (1994). Accordingly, this claim is
not time-barred.
13
conspiracies to interfere with civil rights. Subsection (1) provides a remedy, generally, if two or
more persons conspire to prevent any person from accepting or holding any office, trust, or place
of confidence under the United States or otherwise to prevent a federal officer from performing
his duties; subsection (2) provides a remedy, generally, if two or more persons conspire to deter,
by force, intimidation, or threat, any party, witness, or juror in any court of the United States;
subsection (3) provides a remedy, generally, if two or more persons conspire or go on the
premises of another, “for the purpose of depriving, either directly or indirectly, any person . . . of
the equal protection of the laws, or of equal privileges and immunities under the laws.”
Only subsection (3) is arguably implicated by the facts asserted here. To state a claim
under § 1985(3), one must allege:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.
United Broth. of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825,
829 (1983).
With respect to the second element, the conspiracy must be motivated by “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus.” Griffin v. Breckenridge, 403
U.S. 88, 102 (1971), quoted in Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006).
Thus, in order to state a claim under § 1985, there must be factual allegations suggesting some
racial or otherwise invidiously discriminatory animus behind the alleged conspirators’ actions.
See Kush v. Rutledge, 460 U.S. 719, 724-26 (1983). No such factual allegations of
discriminatory intent are set forth in the Complaint.
Nor are there allegations sufficient to suggest “conspiracy.” The Supreme Court has
14
demonstrated the application of Twombly’s general pleading standards to a conspiracy claim.
In applying these general standards to a [conspiracy] claim, we hold that stating
such a claim requires a complaint with enough factual matter (taken as true) to
suggest that an agreement was made . . . [i]t makes sense to say, therefore, that an
allegation of parallel conduct and a bare assertion of conspiracy will not suffice.
Without more, parallel conduct does not suggest conspiracy, and a conclusory
allegation of agreement at some unidentified point does not supply facts adequate
to show illegality. Hence, when allegations of parallel conduct are set out in order
to make a [conspiracy] claim, they must be placed in a context that raises a
suggestion of a preceding agreement, not merely parallel conduct that could just
as well be independent action.
The need at the pleading stage for allegations plausibly suggesting (not merely
consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that
the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to
relief.” A statement of parallel conduct, even conduct consciously undertaken,
needs some setting suggesting the agreement necessary to make out a
[conspiracy] claim.
Twombly, 550 U.S. at 556-57 (citations and footnotes omitted). Here, Plaintiff has not pleaded
any facts suggesting “agreement” or “conspiracy” or even parallel conduct by any two
defendants. As such, this claim will be dismissed without prejudice for failure to state a claim.
G.
State Law Claims
Plaintiff also seeks to assert claims under the New Jersey Constitution, not otherwise
described, and under state law for false arrest and imprisonment, abuse of process, intentional
infliction of emotional distress, negligence, and malicious prosecution. As noted above, the state
law claims for false arrest and imprisonment will be dismissed with prejudice as time-barred, for
the same reasons that the federal false arrest and imprisonment claims are dismissible. Similarly,
the state law claim for malicious prosecution against Detective Koczur will be permitted to
proceed past the screening stage, for the same reasons that the federal claim will be permitted to
proceed. The state law claims for negligence and for violations of the New Jersey Constitution
will be dismissed without prejudice simply because they are too vaguely pleaded to permit
15
evaluation. The Court will address separately, below, the alleged state law claims for abuse of
process and intentional infliction of emotional distress.
1.
Abuse of Process
Under New Jersey law, “[a] successful claim of malicious abuse of process first requires
a defendant’s improper, unwarranted and perverted use of process after it has been issued,” and
the defendant “must also reveal, after process has been issued, an ulterior purpose in securing it
by committing ‘further acts’ which reveal a motive to coerce or oppress the plaintiff.” Wozniak
v. Pennella, 373 N.J. Super. 445, 461 (App. Div. 2004) (internal quotation marks and citations
omitted), cert. denied, 183 N.J. 212 (2005). In other words, “an abuse of process occurs when a
prosecution is initiated legitimately [but] thereafter is used for a purpose other than that intended
by the law.” Mitchell v. Guzick, 138 Fed.Appx. 496, 502 (3d Cir. 2005) (citation omitted).
“There is no valid claim for abuse of process where a party carries out process to its authorized
conclusion, despite also having bad intentions.” Avaya Inc. v. Cisco Systems, Inc., No. 10-5881,
2012 WL 2065536, at *4 (D.N.J. June 7, 2012).
“Process,” as used in the term “malicious abuse of process,” refers not to all legal
proceedings in an action, but more narrowly “to the abuse of procedural methods used by a court
to acquire or exercise its jurisdiction over a person or over specific property.” Wozniak, 373 N.J.
Super. at 461. See also Avaya, 2012 WL 2065536, at *3 (the term “process” refers only to
“certain products of litigation that a court issues, such as a summons, mandate, or writ used by a
court to compel the appearance of the defendant in a legal action or compliance with its orders”
(internal quotations and citation omitted)).
[B]asic to the tort of malicious abuse of process is the requirement that the
defendant perform further acts after issuance of process which represent the
perversion or abuse of the legitimate purposes of that process. Examples of
“[f]urther acts” could be attachment, execution, garnishment, sequestration
16
proceedings, arrest of the person and criminal prosecution and even such
infrequent cases as the use of a subpoena for the collection of a debt.
Coercive action or bad motives or intent prior or leading to the institution of the
lawsuit do not suffice to expose a [party] to a cause of action for malicious abuse
of process. In order for there to be abuse of process . . . a party must use process
in some fashion, and that use must be coercive or illegitimate.
Cohen v. Page, 2012 WL 2199263 (N.J. Super. App. Div. June 18, 2012) (interior quotation
marks and citations omitted) (emphasis in original).
Here, Plaintiff has failed to allege any facts suggesting that Detective Koczur used any
court-issued process in a coercive or illegitimate manner. 8 Accordingly, this claim will be
dismissed without prejudice for failure to state a claim.
2.
Intentional Infliction of Emotional Distress
The elements of the New Jersey common law tort for intentional infliction of emotional
distress were set forth by the Supreme Court of New Jersey in Buckley v. Trenton Saving Fund
Society, 111 N.J. 355 (1988). “Generally speaking, to establish a claim for intentional infliction
of emotional distress, the plaintiff must establish intentional and outrageous conduct by the
defendant, proximate cause, and distress that is severe.” Id. at 366. More specifically, first, the
defendant must have acted intentionally or recklessly; that is, the defendant must have intended
“both to do the act and to produce emotional distress,” or the defendant must have acted
“recklessly in deliberate disregard of a high degree of probability that emotional distress will
follow.” Id. Second, the defendant’s conduct must be “so outrageous in character, and so
8
To the extent the Complaint could be construed as attempting to state a claim for abuse of
process based on any action by Detective Koczur to improperly execute a legitimately-issued
arrest warrant, such a claim would have accrued at the time of arrest, and would be time-barred.
See Wiltz v. Middlesex County Office of the Prosecutor, Civil Action No. 05-3915, 2006 WL
1966654, *5 (D.N.J. July 12, 2006), affirmed, 249 Fed.Appx. 944 (3d Cir. 2007), cert. denied,
552 U.S. 1285 (2008).
17
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation marks and
citation omitted). Third, the defendant’s actions must have been the proximate cause of the
plaintiff’s emotional distress. Id. Fourth, the emotional distress suffered by the plaintiff must be
“so severe that no reasonable man could be expected to endure it.” Id. (internal quotation marks
and citation omitted). “To prove a claim for intentional infliction of emotional distress, a
plaintiff’s burden of proof must meet an ‘elevated threshold’ that is satisfied only in extreme
cases.” DiClemente v. Jennings, 2012 WL 5629659, at *8 (N.J. Super. App.Div. Nov. 16, 2012).
Finally, the limitations period for a claim of intentional infliction of emotional distress is two
years. See Dipietro v. Vassallo, 2011 WL 5573668, at *5 (N.J. Super. App. Div. Nov. 17, 2011)
cert. denied, 210 N.J. 108 (2012).
As an initial matter, this Court concedes for screening purposes, that a police officer’s
knowingly false accusation that an individual committed a robbery is sufficiently outrageous and
deliberate behavior to satisfy the first two elements of a claim for intentional infliction of
emotional distress. Plaintiff has failed, however, to plead that he suffered any particular
emotional distress as the result of Detective Koczur’s actions. Moreover, to the extent that any
distress arose from the arrest, as opposed to the ongoing prosecution, the two-year limitations
period has expired. As discussed above, Plaintiff’s arrest was nearly three years prior to the date
he instituted this suit. Accordingly, this claim will be dismissed without prejudice for failure to
state a claim.
V. CONCLUSION
For the reasons set forth above, the federal and state claims for malicious prosecution
may proceed as against Defendant Detective Koczur. All remaining claims will be dismissed,
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pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.
However, because it is conceivable that Plaintiff may be able to supplement his pleading with
facts sufficient to overcome the deficiencies described herein, he will be granted leave to file an
amended complaint. 9
An appropriate Order follows.
/s/ Esther Salas___________
United States District Judge
Dated: December 6, 2013
9
Plaintiff should note that when an amended complaint is filed, it supersedes the original and
renders it of no legal effect, unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v. Huntington National Bank,
No. 12-2430, 2013 WL 1338986, at *5 (3d Cir. Apr. 4, 2013) (collecting cases). See also 6
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2008).
To avoid confusion, the safer practice is to submit an amended complaint that is complete in
itself. Id.
19
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